Does child support always end at 18? No.
Children are expensive. I constantly hear clients who are parents jokingly (or not) proclaim that they can’t wait until their child turns 18 years of age, assuming that their child support ends at this time. Many people do not know that child support can extend beyond the age of 18 under certain circumstances.
High School Attendance
Parties can agree to extend child support through the child’s graduation. Many times, a child will turn 18 years of age prior to their last year in high school and the child may be left without proper support while trying to complete high school.
Florida Statute 743.07(2) addresses this issue. Pursuant to the statute, child support can be extended if the dependent person is, in fact, between the ages of 18 and 19 and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19. Most marital settlement agreements we draft contain this language, but this is not the default. Eighteen is still the magic number wherein the disability of non-age is removed and the child is considered an adult.
Special Needs Children
Florida statues also contemplate children with special needs. Florida Statute 743.07(2) provides child support to be extended if the child is dependent due to a mental or physical incapacity. The court defines mental or physical incapacity as not being able to be self-sustaining due to the individual’s mental condition that occurred prior to the child reaching majority.
Disinclination to work is not an incapacity. Similarly, attendance at college classes where the child is still dependent upon the parents does not rise to the level of dependency as contemplated by the statute. Parents may feel as though it is their moral duty to pay for their child’s higher education; however, parents do not have a legal duty to provide a college education. Alternatively, paying for college may be agreed upon by the parties in a marital settlement agreement. See Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978).
Pursuit of an Extension
In order to extend child support for the child, the parent must establish that the mental or physical incapacity arose prior to the child turning 18 years old and the parent must petition the court to extend child support timely, specifically prior to the child turning 18 years old.
Once the child turns 18 years old, the parent would not have standing to petition the court to extend child support, as they no longer have a pecuniary interest in the child support. As a result, the child may bring suit against one of their parents and one of the parents would be the defendant in the suit. See Brown v. Brown, 714 So.2d 475 (Fla. 5th DCA 1998); see also Henderson v. Henderson, 882 s0. 2d 499 (Fla. 1st DCA 2004).
Most importantly, in the event your client already has a child support order, your client needs to be aware of the child support termination date since it does not necessarily terminate at 18 years of age. Otherwise, your client may end up in arrears of the child support order. Your client should not be caught in midst of a contempt action – one of the most severe consequences of contempt being jail time. Furthermore, since child support is a priority debt, it is not dischargeable in bankruptcy. Doreen Yaffa